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ElizabethOvercashPlace of Publication: Michigan State University College of LawPublish Year: 2011Primary Citation: Animal Legal & Historical Center1Country of Origin: United States

Summary:

This discussion of CAFOs and animal welfare measures introduces CAFOs and the agricultural industry. It then examines the animal welfare, environmental, and human health concerns that have arisen with CAFOs. Finally, the article notes the legislation and ballot initiatives that have been enacted to address these concerns.

I. Introduction

American agriculture has changed dramatically over the past century. Agriculture traditionally consisted of many small farms, with twenty-four percent of Americans employed in agriculture before World War II. [ 1 ] Now, however, farming is handled by only a handful of companies, with only 1.5 percent of Americans currently employed in agriculture. [ 2 ] “Four companies now produce 81 percent of cows brought to market, 73 percent of sheep, half our chickens, and some 60 percent of hogs.” [ 3 ] This change in the manner of farming has brought about many animal welfare, as well as environmental and human health, concerns. In turn, these concerns have created a push for new legislation to address these issues.

This Paper addresses the animal welfare issues and legislation associated with the current agricultural industry and its use of Concentrated Animal Feeding Operations, or CAFOs. This Paper proceeds in three parts. Part I provides a detailed explanation of CAFOs, discussing the definition of CAFO, the conditions present on CAFOs, and the locations of CAFOs. Part II delves into some of the common concerns arising out of CAFOs, focusing on animal welfare, but also taking a moment to note the environmental degradation and human health issues associated with CAFOs. Finally, Part III describes current and pending legislature concerning animal welfare on CAFOs.

II. What Is a CAFO?

Commonly referred to as “factory farms,” [ 4 ] Concentrated Animal Feeding Operations, or CAFOs, are animal producing operations that have become a common part of today’s agricultural industry, providing most of the food animals that Americans eat. [ 5 ] Although particularly popular in the United States, CAFOs are present worldwide, [ 6 ] providing a more automated form of agricultural production that allows for an increased meat yield. [ 7 ]

A. Definition of CAFO

According to the United States Environmental Protection Agency, or EPA, a CAFO is a form of AFO, or Animal Feeding Operation, defined as an: " agricultural operation[] where animals are kept and raised in confined situations. AFOs congregate animals, feed, manure and urine, dead animals, and production operations on a small land area. Feed is brought to the animals rather than the animals grazing or otherwise seeking feed in pastures, fields, or on rangeland.” [ 8 ] More specifically, an agricultural operation qualifies as an AFO if the animals included in the operation are confined for at least forty-five days in a twelve-month period, and if there is “ no grass or other vegetation in the confinement area during the normal growing season.” [ 9 ]

Approximately fifteen percent of AFOs are CAFOs for EPA regulatory purposes. [ 10 ] To meet the definition of a CAFO, an AFO must meet one of EPA’s definitions of Large CAFOs, Medium CAFOs, or Small CAFOs. [ 11 ] First, a Large CAFO must contain a certain number of animals, as seen in the table below.

Next, an AFO may be designated as a Medium CAFO in two ways. First, the AFO must contain a designated amount of animals, as seen in the table below. In addition to containing one of these quantities of animals, for an AFO to be a Medium CAFO, it must also either have “a manmade ditch or pipe that carries manure or wastewater to surface water,” or have “the animals come into contact with surface water that passes through the area where they’re confined.” [ 12 ] Second, an AFO may be designated a CAFO if it is found to be a significant contributor of pollutants. [ 13 ]

Finally, an AFO may be designated as a Small CAFO if the operation contains fewer animals than a Medium CAFO, and if the operation is found to be a significant contributor of pollutants. [ 14 ] Small CAFOs are designated on a case-by-case basis. [ 15 ]

Regulatory Definitions of Large CAFOs, Medium CAFO, and Small CAFOs [ 16 ]

chickens other than laying hens (other than a liquid manure handling systems)

125,000 or more

37,500 – 124,999

less than 37,500

laying hens (other than a liquid manure handling systems)

82,000 or more

25,000 – 81,999

less than 25,000

ducks (other than a liquid manure handling systems)

30,000 or more

10,000 – 29,999

less than 10,000

ducks (liquid manure handling systems)

5,000 or more

1,500 – 4,999

less than 1,500

B. Conditions on CAFOs

CAFOs reflect an American trend toward greater confinement of livestock. [ 19 ] In contrast to the traditional, pre-World War II farm, where animals would typically graze in pastures, CAFOs confine animals to pens and cages, feeding them in masses in feedlots. [ 20 ] The main attributes of CAFOs, in terms of animal living conditions, are confinement and crowdedness.

Battery chickens, or egg-laying chickens, spend their entire lives in a “battery cage,” which is a wire cage generally twelve inches by eighteen inches, holding up to six chickens. [ 21 ] “The cages are stacked on top of each other in a layer house that may hold over 80,000 birds.” [ 22 ] Broiler chickens, or chickens raised for meat, are raised and live with as many as 40,000 other birds in litter on the floor of a warehouse. [ 23 ] The warehouse has no windows and no cooling, and the air is heavily filled with ammonia. [ 24 ]

Hogs live in similarly crowded conditions. [ 25 ] Sows, used for reproduction, are kept either loose or chained at the neck in individual pens that may be too small for the sow to turn around or walk. [ 26 ] Sows are put in “farrowing” (or “birthing”) pens when ready to give birth, which provides room for “almost zero movement.” [ 27 ] Sows are generally confined ten months of each year, or, if artificial insemination is used, they are continuously so confined throughout their lives. [ 28 ]

Cattle raised for dairy, similarly, often live indoors in individual pens, having “only enough room to stand up and lie down.” [ 29 ] Cattle raised for beef are either raised in crowded, outdoor feedlots or indoor pens. [ 30 ] Calves raised for veal are chained down as newborns in narrow stalls in which they may not be able to stand up, turn around, or lie flatly. [ 31 ] In order to achieve a certain tenderness of the flesh, veal calves are fed a liquid diet of milk powder and vitamins, receiving no water or straw for bedding in order to preserve their tenderness. [ 32 ] Veal calves are often kept in the dark twenty-two hours or more each day. [ 33 ]

While there are other animals raised on CAFOs, chickens, pigs, and cattle are the most common. In 2009, there were 8.6 billion chickens, 113 million pigs, and over 34 million cattle, including 944,000 calves, killed for agricultural purposes. [ 34 ]

C. Locations of CAFOs

CAFOs are present in abundance throughout the United States. [ 35 ] The states with some of the greatest quantities of CAFO-derived animals are Iowa, California, Georgia, North Carolina, Minnesota, Illinois, Wisconsin, Pennsylvania, and New York. [ 36 ] Iowa produces the most CAFO hogs as compared to any other state, followed by North Carolina, Minnesota, and Illinois. [ 37 ] Iowa also has the most egg-laying hens, beating out California in fourth, Pennsylvania in fifth, and Minnesota in ninth, as well as the fourth most cattle feedlots, ahead of California with the sixth most. [ 38 ] California has the most dairy production of any state, while Wisconsin has the fifth most and New York has the sixth most. [ 39 ] Georgia has the most broiler chickens, ahead of North Carolina with the sixth most broiler chickens, and California with the seventh most. [ 40 ]

It is worth noting that in some states, such as North Carolina and Mississippi, CAFOs tend to be located in poor and African American communities. [ 41 ] For example, in North Carolina, there are 7.2 times as many swine CAFOs located within the areas of highest poverty as compared with the areas of lowest poverty, as well as around five times as many swine CAFOs in areas with the highest percentage of nonwhite population as compared to areas with the lowest percentage of nonwhite population. [ 42 ] The proximity of these CAFOs to already disadvantaged communities can lead to “inequitable health and socioeconomic burdens” for the populations in these communities. [ 43 ]

III. Concerns Arising out of CAFOs

A. Animal Concerns

Animal welfare concerns often arise from the treatment of animals housed on CAFOs. As farming has become more of a large-scale, indoor operation, agricultural animals have become closely-confined commodities given little to no individual attention. As one writer put it: “Genetically designed by machines, inseminated by machines, fed by machines, monitored, herded, electrocuted, stabbed, cleaned, cut, and packed by machines—themselves treated like machines ‘from birth to bacon’—these creatures, when eaten, have hardly ever been touched by human hands.” [ 44 ]

The close confinement and crowded conditions create at least two main problems. First, the conditions create both physical and mental ills for the animals. Chickens, pigs, and cattle all suffer from boredom. [ 45 ] Pigs are especially sensitive to the situation, and many die from the stress-related “porcine stress syndrome,” while others develop neurotic behaviors, such as self-mutilation. [ 46 ] Cows are also particularly affected by the stress of the confinement, manifesting psychological and physiological disturbances. [ 47 ]

Stress is not the only illness that the animals suffer, however. For example, due to the heavily ammonia-filled litter in which chickens live, they suffer “ulcerated feet, breast blisters, and hock burns,” [ 48 ] as well as feather-loss, blisters, tumors, foot and leg deformities, and osteoporosis. [ 49 ] Chickens also suffer crippling leg disorders, lung and heart disease, and sudden death syndrome as a result of their unnaturally quick growth. [ 50 ] Pigs similarly suffer from their ammonia-filled living quarters, and they additionally endure foot and leg damage from the slated or concrete floors on which they live. [ 51 ] Additionally, about half of all dairy cows develop a bacterial infection, mastitis, and veal calves, being anemic, develop digestive disorders such as stomach ulcers and chronic diarrhea. [ 52 ]

The second main problem is that the confinement prevents the animals from performing their natural behaviors, causing stress and even aggressive behavior by the animals. [ 53 ] This aggressive behavior, in turn, has led to CAFO workers now conducting painful procedures on the animals. Chickens are de-beaked to prevent pecking, which involves a hot blade cutting through a bird’s beak, bone, and a “highly sensitive soft tissue, resembling the ‘quick’ of the human nail.” [ 54 ] To discourage fighting, chickens may also have their toes removed. [ 55 ] Similarly painful, pigs and cows generally have their tails docked to prevent tail biting. [ 56 ]

These conditions, just to name a few, tend to raise concerns about the confinement and treatment of animals raised on CAFOs. As seen in Part III of this Paper, legislation concerning CAFOs addresses several of these issues of treatment, showing a public concern with some of these issues.

B. Environmental and Human Health Concerns

While this Paper addresses only the legislation affecting animal welfare on CAFOs, it will take a brief moment to note the environmental and human health concerns associated with CAFOs. The issue of environmental degradation that CAFOs present is due to the extreme amount of waste that CAFOs generate. According to the EPA, agriculture is “the leading contributor to water quality impairments in the Nation’s rivers and lakes, and the fifth leading contributor to water quality impairments in the Nation’s estuaries.” [ 57 ] Twenty-two states reported on the impacts of agriculture on water quality, reporting that intensive animal operations account for twenty percent of the agricultural damage to rivers and streams. [ 58 ]

The primary source of pollution from CAFOs is animal manure. [ 59 ] Although a natural fertilizer, manure from CAFOs is generated in such quantities that surrounding fields cannot absorb it all, creating soil, water, and even air pollution. [ 60 ] The manure, when introduced into water, can result in fish kills, reduced biodiversity, and contaminated drinking water, among many other effects. [ 61 ] Nitrate from manure, if it enters drinking water, can be potentially fatal to infants. [ 62 ] “EPA found that nitrate is the most widespread agricultural contaminant in drinking water wells, and estimates that 4.5 million people are exposed to elevated nitrate levels from drinking water wells.” [ 63 ] Additionally, when introduced into soil, manure can be toxic to plants. [ 64 ]

Odors from CAFOs can cause both environmental and human health concerns. Methane emissions from waste lagoons pollute the environment by contributing to global warming. [ 65 ] The United Nation’s Food and Agriculture Organization’s 2006 report estimated that eighteen percent of all greenhouse gas emissions are from livestock. [ 66 ] “The United States estimates that all of U.S. agriculture accounts for approximately 7% of total national emissions.” [ 67 ]

The odors can cause both physical and mental health impacts in humans. [ 68 ] “[R]espiratory problems prevalent among CAFO works—bronchitis, hyper-reactive airway disease, occupational asthma, and hydrogen sulfide intoxication—are more likely found in populations living within two miles of large CAFOs than populations not located near CAFOs.” [ 69 ]

Antibiotic resistance is also a human health concern. “The Center for Disease Control and Prevention (CDC) estimates that 60,000 Americans die each year from antibiotic resistant disease.” [ 70 ] Inappropriate use and overuse of antibiotics is thought to be a main cause of antibiotic resistance, and much of this use results from agriculture. Nearly eighty percent of antibiotics used in America are estimated to be used for non-therapeutic purposes in livestock production, such as giving animals low levels of antibiotics to prevent disease, in an effort to compensate for the overcrowded and unsanitary CAFO conditions. [ 71 ]

Finally, the meat produced on CAFOs may itself be a human health concern. “Diets high in red and processed meat have been found to be associated with greater mortality from cardiovascular disease and cancer,” as well as with higher rates of Type 2 Diabetes. [ 72 ] Animals, such as those in CAFOs, which are fed a grain diet, rather than a natural grass diet, may have higher levels of total fat, cholesterol, calories, and saturated fat, which may increase cholesterol levels and risk of heart disease or stroke. [ 73 ]

The confinement conditions at these CAFOs not only give rise to environmental and human health concerns, but also raise inherent animal welfare issues. While the response to these concerns has not kept pace with the increase in CAFOs, legislation concerning CAFOs has provided some slight advancements in animal welfare.

IV. Legislation Regarding CAFOs

I n a response to the animal welfare concerns presented by CAFOs, new legislation has been appearing within most states to address these concerns. CAFOs are generally an issue of state law. The United States Department of Agriculture (USDA) does not have authority to regulate animal treatment in state CAFOs. [ 74 ] Further, only two federal laws even touch on agricultural animal welfare at all: the Humane Slaughter Act [ 75 ] and the Twenty-Eight Hour Law . [ 76 ] Neither law provides legitimate protection to animals on CAFOs. As a result, states, through both ballot initiatives and legislation, have begun to enact measures directed at the welfare of confined farm animals.

A. Federal Laws

The Humane Slaughter Act provides that “no method of slaughtering or handling in connection with slaughtering shall be deemed to comply with the public policy of the United States unless it is humane,” [ 77 ] which means that “before being shackled, hoisted, thrown, cast, or cut,” all “cattle, calves, horses, mules, sheep, swine, and other livestock . . . [must be] rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective.” [ 78 ] However, the Act only applies to livestock, not poultry, [ 79 ] thus exempting ninety-two percent of animals killed on CAFOs. [ 80 ]

The Twenty-Eight Hour Law provides that animals may not be held without food or water for more than twenty-eight hours. [ 81 ] However, an extension to thirty-six hours is granted upon a simple request, sheep may be confined for forty-eight hours, [ 82 ] and the Law only applies to transportation by railcar, [ 83 ] thus exempting the majority of animals, as most animals are transported by truck. [ 84 ] The European Union, based upon research by the European Commission, states that fourteen hours is the maximum amount of time that may be considered “humane.” [ 85 ]

With the lack of federal protection, states, as well as individuals, have taken CAFO regulation into their own hands through state legislation and ballot initiatives.

B. State Animal Welfare Measures

Both ballot initiatives and legislation have been enacted within many states to focus on the area of animal welfare on CAFOs. The greatest animal welfare concern, which is reflected in legislation and ballot initiatives concerning CAFOs, is the confinement of the animals. Other concerns include the treatment of nonambulatory animals, humane slaughter methods, the force-feeding of birds, and tail docking. These issues are thus the subject of state legislation within several of the states.

Although states began passing humane slaughter laws as early as 1956, even by 2006 only twenty-one states had enacted such laws. [ 86 ] Real change in animal welfare on CAFOs did not come until 2002, when Florida passed a ballot proposal, the Animal Cruelty Amendment: Limiting Cruel and Inhumane Confinement of Pigs during Pregnancy , requiring that pregnant sows be able to turn around freely in their enclosures. [ 87 ] Animal activist groups led the initial push for this ballot proposal, [ 88 ] and, after this success, more ballot proposals were raised in other states, countered by relatively conservative animal welfare legislation supported by the agricultural industry. [ 89 ]

New animal welfare legislation, in contrast to ballot proposals, has not always provided true advancements for animals on CAFOs. For example, in 1996, the New Jersey legislature passed Senate Bill 713: An Act Concerning Domestic Livestock and Animal Cruelty and Welfare Laws. [ 90 ] This bill enacted a new section of the state’s existing statute regulating animal cruelty, [ 91 ] amending the New Jersey Statutes sections 4:22-16 and 4:22-16.1. [ 92 ] Until the enactment of Senate Bill 713, animal welfare and the protection of animals had been left to the discretion of the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA) and its related county organizations. [ 93 ] The bill directed the New Jersey Department of Agriculture (NJDA) to “create and promulgate regulations that would set standards governing the raising, keeping, and marketing of domestic livestock,” or farm animals. [ 94 ] The “guiding principle to be utilized in establishing those standards was to be whether the treatment of these animals was ‘humane.’” [ 95 ]

The NJDA regulations were ultimately challenged by NJSPCA and other interest organizations in N.J. Society for the Prevention of Cruelty to Animals v. N.J. Department of Agriculture . The issue in the case was whether the regulations promulgated by the NJDA pursuant to this authority were invalid for failing to comply with the “humane” standards requirement. [ 96 ] Although the court held that the regulations in their entirety were not invalid, [ 97 ] the court found that NJDA acted arbitrarily and capriciously in enacting its regulations by allowing all “routine husbandry practices,” as there was no evidence that those practices were “humane.” [ 98 ] The court further rejected NJDA regulations allowing cattle tail docking, finding no evidence to support that the practices were “humane.” [ 99 ] Finally, the court rejected the assertion of NJDA that certain controversial farm practices, such as castration, de-beaking, and toe-trimming, are “humane” if they are performed by a “knowledgeable individual” “in a way to minimize pain.” [ 100 ] Thus, this piece of legislation, which upon a prima facie look appeared to provide “humane” regulations for animals on CAFOs, was in fact implemented in such a way as to allow the agricultural industry to set the standards for regulations themselves.

To understand CAFO legislation, one must have a fair understanding of ballot initiatives. Ballot initiatives are the most effective way in which CAFO regulation is achieved. Ballot initiatives are proposals for new law that are placed directly on the voter ballot by a process of petition, or, in other words, by collecting a certain number of citizens’ signatures. [ 101 ] Only twenty-four states allow the ballot initiative process. [ 102 ] This process can be helpful in achieving animal welfare legislation because, rather than going through the state legislature, the proposed laws are put on the ballot by the people and directly voted on by the people, [ 103 ] thus bypassing political constraints that might otherwise hinder legislative progress on these issues. Further, these initiatives have tended to spur legislation because agribusiness leaders attempt to preempt the more progressive ballot initiatives by encouraging legislatures to enact more conservative animal legislation before the ballot initiatives ever come to vote. [ 104 ]

To better understand ballot initiatives, one may compare them to similar issues being addressed through legislation. For example, recently, Washington citizens were attempting to get a ballot initiative, Initiative 1130 , on the November 2011 ballot, which would have prevented the stacking of egg-laying hen cages and would have required that egg-laying hens be confined in ways that allow them to lie down, stand up, fully extend their wings, and turn around freely. [ 105 ] This initiative was dropped, however, after the Humane Society of the United States (HSUS) entered a national agreement with the egg industry on July 7, 2011. [ 106 ]

Comparing Washington proposed Initiative 1130 with a similar Washington piece of legislation, Senate Bill 5487 , [ 107 ] provides a solid foundation for understanding how ballot initiatives differ from legislation. Senate Bill 5487 does not require full compliance with the new standards for egg-laying hen confinement until 2026, whereas Initiative 1130 requires its conditions be met by 2018. [ 108 ] Further, Initiative 1130 requires enough space to where each hen may fully extend her wings, where as Senate Bill 5487 does not require that a hen be able to spread her wings. [ 109 ] The supporters of each are also worth noting. Senate Bill 5487 was supported by the state and national agribusiness industry, including by battery cage egg producers, whereas the supporters of Initiative 1130 were almost all of the Washington state animal welfare organizations, as well as many major national animal welfare organizations, such as the HSUS and Farm Sanctuary. [ 110 ]

Thus, at least in this instance, the ballot initiative appears to be a good bit more progressive in terms of animal welfare than does the senate bill, which is reflected in the organizations that support each proposal. As most ballot initiatives concerning CAFOs focus on confinement standards for animals, ballot initiatives will be better addressed in the next section.

C. Subject Matter of CAFO Measures

Legislation concerning the animal welfare aspects of CAFOs may be divided into several different categories that tend to appear across the states. These categories are: confinement standards for CAFO animals, treatment standards for nonambulatory animals, humane slaughter laws, and miscellaneous protection laws concerning topics such as force-feeding and tail docking.

1. Confinement

Legislation concerning confinement is one of the most common types of CAFO legislation. Considering the issue of crowdedness on CAFOs, this is not surprising. What might be surprising, however, is that confinement legislation tends to legislate for specific animals on CAFOs, not for every animal on a CAFO. These laws generally focus on two groups of animals: one, pigs during pregnancy and calves raised for veal, and two, egg-laying hens. Of the several states that have adopted these measures, the statutes are almost entirely the same, generally granting veal calves and gestating sows the freedom of movement to lie down, stand up, and turn around without touching their enclosures.

Ballot initiatives are crucial to understanding confinement legislation. In 2002, Florida passed a ballot proposal, the Animal Cruelty Amendment: Limiting Cruel and Inhumane Confinement of Pigs during Pregnancy , which requires that pregnant sows be able to turn around freely in their enclosures. [ 111 ] This was the first time in American history that a farming practice was banned solely on account of its inherent cruelty, and 2.5 million Floridians voted for this change. [ 112 ] “Before the vote, Florida’s legislature had ignored proposed legislation to ban the gestation crate, one of factory farming’s worst forms of intensive confinement;” thus, the onus fell on animal advocates to act. [ 113 ] The Animal Rights Foundation of Florida led the campaign for the ballot initiative along with HSUS, The Fund for Animals, and Farm Sanctuary. [ 114 ]

After this success, HSUS, Arizona Humane Society, Animal Defense League of Arizona, and Farm Sanctuary led another effort to pass Proposition 204 in Arizona. [ 115 ] Proposition 204 : Relating to Cruel and Inhumane Confinement of Animals passed in 2006. [ 116 ] This proposition, which added section 13-2910.07 of title 13, chapter 29, of the Arizona Revised Statutes, provides that:

[A] person shall not tether or confine any pig during pregnancy or any calf raised for veal, on a farm, for all or the majority of any day, in any manner that prevents such animal from:

Opponents of Proposition 204, including the Arizona Farm Bureau and the Center for Consumer Freedom, put $2.5 million into an unsuccessful campaign against the initiative. [ 118 ]

In 2008, Proposition 2 , a ballot initiative in California, was successfully passed by the people, and now requires that calves raised for veal, egg-laying hens, and pregnant sows only be confined in enclosures that allow them to lie down, stand up, fully extend their limbs, and turn around freely. [ 119 ] Proposition 2 obtained many supporters:

The Humane Society of the United States, the California Veterinary Medical Association, the Center for Food Safety, the ASPCA, the Consumer Federation of America, the Center for Science in the Public Interest, the United Farm Workers, Farm Sanctuary, the Sierra Club, Cesar Chavez Foundation, the State Humane Association of California, Republican and Democratic elected officials, hundreds of California veterinarians, family farmers, religious leaders, and an overwhelming majority of California voters. [ 120 ]

Specifically, Proposition 2 passed with 63.5 percent of the vote. [ 121 ] Opponents included Foster Farms, the United States Poultry and Egg Association, and Land-o-Lakes. [ 122 ]

HSUS then “had its eye on Ohio to pass legislation to ban the use of poultry cages, veal crates and gestation stalls.” [ 125 ] Big agriculture in Ohio feared an initiative like Proposition 2 would come to their state, so, in anticipation of this initiative, the Ohio Farm Bureau and other agribusiness leaders tried to preempt HSUS by talking with state legislators. [ 126 ] As a result, the House and Senate proposed Issue 2 , a voter referendum to create an Ohio Livestock Care Standards Board, which would establish a state board to set state standards for the care and well-being of livestock. [ 127 ] Since agribusiness lobbied for Issue 2 , and since the governor and legislature, led by the state agriculture director, would appoint members to the board, the board would be industry dominated. [ 128 ] Representative Michael J. Skindell, D-Lakewood, has said, “[I]t’s really about agribusiness interests working with the legislature to block regulations requiring more humane treatment of animals—allowing a chicken to spread its wings in a cage, for example, or a dairy cow to lie down in the barn.” [ 129 ]

Issue 2 was approved. [ 130 ] However, on January 27, 2010, the Ohio Livestock Care Initiative, a 2010 proposed constitutional amendment, was filled with the Ohio Attorney General as a countermeasure to Issue 2. [ 131 ] The initiative was supported by HSUS. [ 132 ] On June 30, HSUS agreed to drop ballot efforts in accordance with an agreement with Governor Ted Strickland and Ohio agricultural leaders that required the state to adopt several livestock regulations, including “phasing out gestation crates used by the pork industry over the next 15 years . . . .” [ 133 ]

More legislation has sprung up. In 2007, Oregon enacted Senate Bill 694 : An Act Relating to Confinement of Animals, which provides that neither a calf raised for veal nor a pig may be confined unless they can lie down, fully extend their limbs, and turn around freely. [ 134 ] The Oregon law thus differs slightly from the others in that it does not require a pig to be a pregnant sow in order to receive protection. Providing protection only to pregnant pigs, rather than all pigs, tends to be the norm, as seen in the successfully passed 2008 Colorado Senate Bill 08-201: Confinement of Calves Raised for Veal and Pregnant Calves, which provides that calves raised for veal and gestating sows must be able to stand up, lie down, and turn around without touching the sides of their enclosure. [ 135 ]

In 2009, Maine enacted Legislation Document 1021 : An Act to Prohibit Cruel Confinement of Calves Raised for Veal and Sows During Gestation, which provides that calves raised for veal and pregnant sows must be able to lie down, stand up, fully extend their limbs, and turn around freely. [ 136 ]

Also in 2009, Michigan passed House Bill 5127: Animal Industry Act, which covers not only calves raised for veal and gestating sows, but also egg-laying hens, and provides that these covered animals must be able to lie down, stand up, fully extend their limbs, and turn around freely when confined. [ 137 ] Michigan thus addresses all three of the major confinement issues in a single statute.

A person commits the offense of unlawfully confining an egg-laying hen if the person is a farm owner or operator who, for the majority of any 24-hour period, confines an egg-laying hen in an enclosure, located on a farm, that:

Several states have also passed legislation concerning nonambulatory animals, meaning animals that are unable to walk or stand without assistance. These laws generally prohibit buying or selling nonambulatory animals, or establish minimum care standards for nonambulatory animals, or both. For example, in 2003, Oregon passed House Bill 3339 : An Act Relating to Livestock, which prohibits the trading of nonambulatory livestock. [ 139 ] Washington also, in 2009, passed Senate Bill 5974 : An Act Relating Transporting or Accepting Delivery of Live Nonambulatory Livestock, which prohibits transporting or accepting delivery of live nonambulatory livestock. [ 140 ]

Several states, however, did not enact laws concerning downed animals until abuses concerning these animals were discovered. [ 141 ] California is a good example. On February 17, 2008, after the USDA’s Food Safety and Inspection Services (FSIS) learned that a meat packing company was not always notifying FSIS about cattle that became nonambulatory after being inspected but before being slaughtered for food, the USDA announced the largest meat recall in United States’ history. [ 142 ] “The matter came to light when the Humane Society of the United States (HSUS) released videotapes of what it described as employees inhumanely handling downer cattle before slaughter.” [ 143 ] The meat packing company, Hallmark/Westland Meat Packing Company, recalled 143 million pounds of beef products dating as far back as February 1, 2006, about fifty million pounds of which had been distributed to the school lunch program and other federal nutrition programs in at least 45 states. [ 144 ] The USDA deemed the meat unfit for human food because nonambulatory cattle are more likely to have bovine spongiform encephalopathy (BSE). [ 145 ] “In early May 2008, HSUS notified the Secretary of Agriculture that it had collected new evidence of abuse of nonambulatory cows and pigs at livestock auction markets in Maryland, Pennsylvania, New Mexico, and Texas.” [ 146 ]

To help rebuild market confidence, the American meat Institute, the National Meat Association, and the National Milk Producers Federation petitioned FSIS to entirely ban nonambulatory cattle from the meat supply. [ 147 ] This rule became effective in 2009. [ 148 ] Similarly, California Assembly Bill 2098 , enacted in 2008, prohibits the sale of meat or meat products of nonambulatory animals for consumption, and requires the entity in charge of the nonambulatory animal to “either take immediate action to humanely euthanize the animal or humanely remove the animal for veterinary treatment.” [ 149 ]

3. Humane Slaughter

While states began passing humane slaughter laws as early as 1956, [ 150 ] only twenty-one states had enacted such laws by 2006. [ 151 ] These humane slaughter laws provide some regulation of the methods of animal slaughter in CAFOs. The 2006 Mississippi House Bill 1109 is one such statute, providing:

For purposes of this chapter, the following methods of slaughtering and handling are declared to be humane:

(a) In the case of cattle, calves, horses, mules, sheep, swine, ratites, nontraditional livestock, rabbits and other livestock, all animals are to be rendered insensible to pain by a single blow or gunshot or by an electrical, chemical or other means which is rapid and effective before being shackled, hoisted, thrown, cast or cut; or

(b) By slaughtering and handling in connection with such slaughtering in accordance with the ritual requirements of the Jewish faith or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument. [ 152 ]

This statute also provides for the Commissioner of Agriculture and Commerce to examine and inspect for humane methods of slaughter within CAFOs. [ 153 ]

New Hampshire, similarly, enacted a humane slaughter law in 1960. [ 154 ] In 2010, however, New Hampshire enacted House Bill 1359 : An Act Relative to the Enforcement of Humane Slaughter Laws, which changed the wording of the statute to allow, rather than require, the Commissioner of the Department of Agriculture, Markets, and Food to authorize any agent to enforce the state’s Humane Slaughter Provisions. [ 155 ] Thus, with this recent bill, New Hampshire effectively destroyed the power of its humane slaughter law, allowing the law’s enforcement to be only permissive rather than mandatory.

4. Miscellaneous Protection Statutes

While many of the animal protection statutes fall into categories, there are also statutes seen in fewer numbers, with just a few states enacting them. Two such types of statutes, which in fact are becoming more commonplace in pending legislation and deserving of their own categories, are statutes prohibiting tail docking and statutes prohibiting force-feeding of birds. For an example of a force feeding statute, Michigan, in 2007, enacted House Bill 4871 , which prohibits the force-feeding of birds, meaning “deliver[ing] food by placing a tube or other device into the esophagus of a bird and includes any other feeding method designed to cause the ingestion of an amount of food by the bird that exceeds the amount that would be ingested voluntarily by a bird of that species.” [ 156 ] Legislation concerning force-feeding of birds, generally to produce the food foie gras, [ 157 ] has arisen out of much controversy. Not only have there been protests against foie gras during the last decade, [ 158 ] but even lawsuits challenging the practice; one such suit, Lovenheim v. Iroquois Brands , dates as far back as 1985. [ 159 ]

For an example of a tail docking statute, in 2009, California passed Senate Bill 135 , which prohibited the tail docking of horses and cattle. [ 160 ] This bill was supported by the American Society for the Prevention of Cruelty to Animals (ASPCA), HSUS, California Veterinary Medical Association, California Cattlemen’s Association, and California Farm Bureau. [ 161 ] While there are other miscellaneous anti-cruelty statutes, these are two of the more common types, as is seen in the currently pending legislation.

V. Pending Legislation Concerning CAFOs

Pending animal welfare legislation may also be divided into categories. Issues of animal confinement continue to be the foremost topic in new CAFO legislation, followed by legislation concerning tail docking, force-feeding of birds, treatment of nonambulatory animals, and miscellaneous animal protection concerns.

1. Confinement

Pending legislation among the states still focuses hugely on the confinement standards for animals on CAFOs. Florida currently has pending Senate Bill 1636 : An Act Relating to the Protection of Farm Animals, which would provide that no calves raised for veal or egg-laying hens may be confined in such a way that the animals cannot lie down, stand up, fully extend their limbs, and turn around freely. [ 162 ] Similarly, Massachusetts, North Carolina, and Rhode Island have pending House Bill 458 , House Bill 610 , and House Bill 7769 , respectively, which have the same requirements for egg-laying hens, sows during pregnancy, and calves raised for veal. [ 163 ]

New York currently has two bills addressing this issue. The first is Assembly Bill 1928 : An Act to Amend the Agriculture and Markets Law, in Relation to the Confinement of Animals for Food Producing Purposes, which would provide that pigs during pregnancy, egg-laying hens, and calves raised for veal shall not be confined in a way that prevents them from lying down, standing up, fully extending their limbs, and turning around freely. [ 164 ] The second is Assembly Bill 2118 : An Act to Amend the Agriculture and Markets Law, in Relation to Enacting the Prevention of Farm Animal Cruelty Act, which would not only provide the same requirements of being able to lie down, stand up, extend their limbs, and turn around freely, but would also extend protection to any adult or juvenile bovine, porcine, poultry, or fowl species, thus substantially broadening the typical scope of these sorts of bills. [ 165 ] The bill would also prohibit excessive breeding of these animals; force-feeding; excessively crowded, unsanitary or unsafe conditions; failure to provide nutritious food and potable water; and failure to obtain appropriate medical care for the animals. [ 166 ] This bill thus goes further than many of the currently pending bills in terms of animal welfare reform.

2. Tail Docking

Tail docking legislation continues to grow among the states. Illinois currently has House Bill 1697 : An Act Concerning Animals pending, which would prohibit the tail docking of bovine animals unless necessary to the health of the animal. [ 167 ] Similarly, New York currently has pending Assembly Bill 1893 : An Act to Amend the Agriculture and Markets Law, in Relation to Prohibiting Tail Docking of Cattle, which would prohibit the tail docking of horses and cattle, [ 168 ] and Rhode Island has pending Senate Bill 458 : An Act Relating to Animals and Animal Husbandry, which would prohibit the tail docking of cattle. [ 169 ]

3. Force-feeding of Birds

Public concern with the force-feeding of birds also appears to be growing, as state legislation continues to address this issue. Hawaii currently has pending House Bill 77 : An Act Relating to Foie Gras. [ 170 ] This Act would prohibit the possession, sale, offer for sale, trade, or distribution of foie gras, the fatty liver of a bird that is obtained through force-feeding. [ 171 ] This proposed law appears to have a broader scope than current force-feeding laws in that it not only prohibits the act of force-feeding the birds, but also prohibits the partaking in any part of the result of force-feeding the bird, the foie gras. Not even possession of foie gras is allowed.

4. Nonambulatory Animals

Treatment of nonambulatory animals further continues to be a point of interest in CAFO legislation. New York currently has pending two bills, Assembly Bill 1725 : An Act to Amend the Agriculture and Markets Law, in Relation to Downed Animals, [ 172 ] and Assembly Bill 4615 : An Act to Amend the Agriculture and Markets Law, in Relation to Nonambulatory Animals. [ 173 ] Assembly Bill 1725 would provide that a downed animal, referring to a cow that cannot walk and stand without assistance, shall not be bought, sold, or received for human consumption, nor shall a downed animal be pushed or dragged, but may only be moved with a sling or stoneboat. [ 174 ] The proposed law would also provide that the downed animal be immediately either humanely euthanized or removed for veterinary treatment. [ 175 ] Assembly Bill 4615 would provide that no person shall transport, hold, buy, sell, give, receive, or market a nonambulatory animal. [ 176 ] Thus, there remains a concern with the CAFO animals that are nonambulatory, or downed.

5. Miscellaneous

As always, there are several miscellaneous animal welfare laws pending among the states. New York has pending Assembly Bill 5912 : An Act to Amend the Agriculture and Markets Law, in Relation to Vaccination of Egg-laying Hens Against Salmonella, which would prohibit the transportation, sale, or offer or exposure for sale of eggs from chickens not vaccinated against salmonella enteritidis. [ 177 ] Although helpful to animals, this bill appears to be more for human health concerns than animal welfare concerns. Vermont currently has pending House Bill 553 , which would prohibit the transportation for slaughter or slaughter of calves less than ten days old. [ 178 ] While there are several other miscellaneous animal welfare bills pending, these two are among the more beneficial to the animals.

VI. Conclusion

The conditions currently present on CAFOs are undoubtedly subjects of animal welfare, environmental degradation, and human health concern. As is apparent, animal welfare reform on CAFOs continues both in state legislation and ballot initiatives. The proposed and enacted laws reflect the concerns with animal welfare that are present on CAFOs, focusing primarily on the close confinement of animals, but also addressing some of the painful procedures conducted on the animals, such as tail docking and force-feeding, among others, as well as the treatment of nonambulatory animals and the slaughter of animals. There appears to be a general trend toward legislation giving animals on CAFOs slightly more space in their confinements, generally not major advancements, but providing enough room to lie down, stand up, fully extend their limbs, and turn around freely.

These legislative efforts, however, are clearly motivated by similar, and more progressive, ballot initiatives. The ballot initiatives are the work of animal welfare and animal rights advocates, such as HSUS, Farm Sanctuary, and state animal interest organizations, such as the Animal Rights Foundation of Florida, the Arizona Humane Society, and the Animal Defense League of Arizona. Without ballot initiatives and the fear that the possibility of ballot initiatives puts in the agribusiness leaders, state legislatures would likely enact less animal welfare reform legislation, as there would be significantly less pressure to do so. Ballot initiatives are thus the fuel behind current changes in laws concerning CAFOs.

While the law certainly has a good distance to travel before it alleviates all of the concerns of animal welfare on CAFOs, it appears to be moving in a forward direction, although at a slow pace, each year bringing more legislation, more ballot initiatives, and more, although minor, change. The question, however, might not be whether change will come for animals on CAFOs, but rather whether legal changes arriving at such slow speeds can keep up with the growing agribusiness industry. If the laws cannot keep up, which is a real possibility, then legal aid may come too late to help many of the agricultural animals confined within this industry.

[1] Matthew Scully, Dominion 29 (2002).

[2] Id. ; see also Danielle Nierenberg, Happier Meals: Rethinking the Global Meat Industry 6 (2005) (“The industrialization of meat production has been accompanied by consolidation in the meat industry, so that today a handful of multinational corporations controls most meat production.”).

[34] North Carolina Agricultural Statistics , Nat’l Agric. Statistics Servs., U.S. Dep’t of Agric., 38–42, available at http://www.ncagr.gov/stats/2010AgStat/Page037_056.pdf (last visited Jan. 6, 2011) (giving statistics on all livestock and poultry production in North Carolina).

[157] “[F]oie gras is made from the liver of geese. . . . [F]orce-feeding is frequently used in order to expand the liver and thereby produce a larger quantity of paté. . . . Force-feeding usually begins when the geese are four months old. On some farms where feeding is mechanized, the bird's body and wings are placed in a metal brace and its neck is stretched. Through a funnel inserted 10–12 inches down the throat of the goose, a machine pumps up to 400 grams of corn-based mash into its stomach. An elastic band around the goose's throat prevents regurgitation. When feeding is manual, a handler uses a funnel and stick to force the mash down.” Lovenheim v. Iroquois Brands, 618 F. Supp. 554, 556 n.2 (D.C. 1985).